What Should We Do With the Marital Home?

Local Century 21 realtor Darren Wright dropped off to my office a few copies of his book "House Selling Options During a Divorce". I will be happy to provide copies to my clients who are in the difficult position of deciding what to do with their marital home when they separate. 

Most of the time spouses own their marital home jointly, meaning with both of their names on the title. The law with respect to a jointly-owned home is relatively straight-forward. Either one spouse buys the other out and takes over the house (and mortgage) entirely themselves or they agree to sell, pay off the mortgage and split the net sale proceeds. 

If both spouses want to sell, it's a good idea to talk with a realtor about what if any work should be done to the house and/or yard to maximize the sale price. Both spouses will need to sign a listing agreement with the realtor and agree to accept an Offer to Purchase.

If one of the owners wants to keep the house, the spouses need to agree upon an equity payout amount for the other. If they can't agree on the current fair market value of the house, they can request an opinion as to value from a realtor or two or they can hire an appraiser. The spouse wanting to purchase the home will have to qualify for a new mortgage in his or her name alone.

If the spouses can't agree on terms of sale, an equity payout amount or if both spouses want to buy the house, a Judge can make a court order for sale of the house. This can include deciding on the timing of the sale, such as after the end of the school year if the couple have children. 

As with most aspects of family law, as simple as the options sound, there are a great deal of other considerations with the sale of the marital home. These can include exclusive occupation, occupation rent, credit for mortgage payments and property taxes, the timing of the sale when other legal issues are not resolved, the terms of a listing agreement and terms of sale just to name a few. 

Also, quite often the actual title to the house is not what one or both spouses think it is, and so getting a copy of the title is always the first step. 

It's important to seek legal advice when considering your options.